Liberal Revitalization of State Constitutional & Statutory Law

Unquestionably, an even greater number of state courts will take refuge in local law if the Rehnquist Court continues its move to the right. This movement can be expected to continue into the next decade.¹¹⁶ But the revitalization of state law can only be fully actualized if, at the outset, liberal legal thinkers develop new state law constructs of freedom of expression, equality of treatment, and procedural and substantive forms of fairness. Just as scholars such as Anthony Amsterdam, Ruth Bader Ginsburg, Gerald Gunther, and Charles Reich once presented the federal courts with innovative conceptions of fundamental fairness, such efforts must now be directed to the state courts. That it is possible to erect new, 'ground-up' theories of constitutionalism is apparent from the exciting experiment presently being conducted in Oregon where new approaches to issues ranging from free speech to criminal justice are emerging.¹¹⁷ Such theories need not be state-specific. Rather, models of state-law-based arguments should be fashioned which are widely adaptable to the texts of state bills and declarations of rights.

Innovative state law arguments, however, depend significantly upon reform in the law schools' constitutional law curricula. Incredibly, most of the nation's law schools continue to ignore the burgeoning developments in state constitutional law and individual rights. This may be less surprising if it is understood that toda's casebook authors are, by and large, Warren Court proteges. The federal law bias in current constitutional law texts not only fosters a distorted view of American constitutionalism, but also reinforces litigation habits characteristic of an earlier era confronted by different problems. State judges are not apt to resolve state law claims if the latter are either not raised or are present in an abbreviated or supplemental fashion. Yet, that is exactly how today's law schools are training students to proceed.¹¹⁸ Future educators need to liberate the bench and bar from the contemporary mindset that the vindication of rights claims is exclusively the domain of federal constitutional law. We have produced a generation disposed to federal constitutional combat to the exclusion of all else.

Along with the neglect of state constitutional law, liberal public law scholars have slighted opportunities for exploring state statutory law issues. Basic state statutory construction questions are regularly set aside when cast in the shadow of a constitutional question. Thus, for example, when the state seeks to abridge speech, it is all too readily assumed that the statute under which it is proceeding authorizes it to do what it claims. Eager to discuss the larger federal constitutional issues, scholars (and lawyers) too easily dismiss federal or state statutory points. If lawyers are conceding the issue, it is in large measure because their professors are unknowingly directing them to do so by failing to emphasize the critical relationship between statutory law and individual rights claims. In this regard, far too little attention is given to the fact that Judge Learned Hand's 1917 Masses opinion,¹¹⁹ for example, was first and foremost and exegesis of statutory law, much more so than of first amendment law. Just as state constitutional law issues are starting to be seen as antecedent to federal law claims, so must state and federal statutory questions be assigned an antecedent status in individual rights cases. In legal academia, the literature on statutory construction is left primarily to commercial law scholars. Consequently, the bench and the bar receive little or no aid, or even encouragement, from liberal scholars suggesting ways to reconcile constitutional claims of right with statutory law.¹²⁰